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Clemente v. FBI, No. 20-1527, 2022 WL 17092585 (D.D.C. Nov. 21, 2022) (McFadden, J.)


Clemente v. FBI, No. 20-1527, 2022 WL 17092585 (D.D.C. Nov. 21, 2022) (McFadden, J.)

Re:  Request for records concerning Jeffrey Epstein and his alleged criminal activities

Disposition:  Granting defendant’s motion for summary judgment

  • Litigation Considerations, Adequacy of Search:  The court finds that “[t]he FBI’s search was adequate.”  “The FBI’s primary declarant shows that the FBI’s search was reasonably calculated to uncover all records responsive to [plaintiff’s] FOIA request.”  “He describes how the FBI organizes and indexes its files, and how it searches various record-keeping systems.”  “For [plaintiff’s] request, the FBI searched both its FOIA document processing system and its Central Records System for responsive records.”  “And the FBI’s declarant provides the terms searched and cut-off dates used.”  “The FBI has thus provided a ‘reasonably detailed affidavit setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.’”
  • Exemption 1:  “The Court . . . finds that the FBI has properly invoked Exemption 1.”  “The FBI’s declarant reviewed the documents and determined that they contain information properly classified as ‘secret’ under Executive Order 13,526.”  “He explained that the withheld information relates to the FBI’s intelligence activities, sources, and intelligence-gathering methods.”  “And the information ‘consists of detailed intelligence information gathered or compiled by the FBI on a specific individual(s) of national security interest.’”  “Releasing this information ‘could reasonably be expected to cause serious damage to the national security’ because criminals could learn about the FBI’s intelligence-gathering techniques.”  “More, disclosure would reveal specific targets of national security-related investigations and the priorities the FBI assigns to such investigations.”  “The Court finds that it is both plausible and logical that disclosure of the withheld information could reasonably be expected to damage national security.”  “The FBI persuasively explains how disclosure of the information at issue would ‘severely disrupt’ its intelligence-gathering capabilities.”  “And ‘finding no evidence in the record to support the opposite conclusion, no further investigation is required.’”
  • Exemption 3:  “First, the FBI attests that it properly withheld names, images, and other identifying information of child witnesses and victims under the Child Victims’ and Child Witnesses’ Rights Act, 18 U.S.C. § 3509.”  “Other courts in this district have held that this Act ‘qualifies as an Exemption 3 withholding statute.’”  “The Court is satisfied that this statute justifies the FBI’s withholding of information related to minor victims and witnesses as part of the sexual abuse investigation involving Jeffrey Epstein.”

    “Second, the FBI withheld grand jury materials falling within Federal Rule of Criminal Procedure 6(e), which protects matters before the grand jury.”  “The FBI withheld the names of subpoena recipients, specific records it sought via subpoena, and records provided in response to its subpoenas.”  “The Court agrees that disclosure of this information would violate the secrecy of grand jury proceedings, including the identities of witnesses, and that the FBI properly withheld this information.”

    “Third, the FBI withheld documents pertaining to arrests and the criminal history of third-party juveniles under the Juvenile Justice and Delinquency Act, 18 U.S.C. § 5038.”  “This Act shields from disclosure all information related to any juvenile delinquency proceeding, with a few exceptions. See 18 U.S.C. § 5083(a)(1–6).”  “Because [plaintiff’s] request does not qualify for any of the Act’s exceptions, the Court finds that the FBI properly withheld these records under Exemption 3.” 

    “Fourth, the FBI withheld information in two documents under the National Security Act, 50 U.S.C. § 3024(i)(1).”  “It asserts some of these withholdings alongside Exemption 1.”  “As the FBI explains, this Act affords absolute protection to intelligence sources and methods.”  “And the FBI determined that information in the two withheld documents ‘would reveal intelligence sources and methods’ allowing criminals to develop and implement countermeasures, all to the detriment of the nation’s security.”  “To bolster its assertions, the FBI submitted a classified ex parte declaration.”  “The Court has reviewed this declaration and finds that it supports the FBI’s assertion of Exemption 3 under this Act.”  “The FBI therefore properly withheld these records.”
  • Exemption 5, Deliberative Process Privilege & Exemption 5, Foreseeable Harm and Other Considerations:  The court relates that “[t]he FBI withheld two categories of information under the deliberative process privilege:  FOIA processing records and emails discussing FOIA search decisions.”  “The FBI explains that the first category includes ‘search slips, electronic surveillance search slips, and internal FBI administrative tracking forms.’”  “It argues that these are predecisional because they catalog how the FBI formulates a final FOIA search decision.”  “And the FBI asserts that they are deliberative because they show the way search avenues are discussed and revised.”  “The Court agrees.”  “As for foreseeable harm, the FBI explains that disclosure of the FOIA processing records would ‘curtail[ ] proper deliberations during the processing of FOIA requests’ and lead to ‘public confusion as to the FBI’s final decisions’ because it would ‘show considered decisions never adopted and actions never taken and cause doubt as to the FBI’s final decision or action.’”  “Without evidence from [plaintiff] to the contrary, the Court finds that the FBI carries its foreseeable harm burden as to this information.”

    “Now for the emails discussing FOIA search decisions.”  “The FBI explains that these emails are deliberative and predecisional because they discuss whether information pertaining to an investigation can be released to the FOIA requester and contain ‘strategy development on how to handle’ FOIA responses, including whether expedited processing is warranted.”  “The Court agrees that these emails qualify for the deliberative process privilege.”  “As for foreseeable harm, the FBI asserts that releasing the information in these emails would allow FOIA requesters to judge ‘the nature of certain FBI law enforcement investigations,’ chill internal discussions about how to respond to FOIA requests, and ‘create public confusion because [the information] predates final agency decisions.’”  “The FBI has thus provided a ‘focused and concrete demonstration of why disclosure of the particular type of material’ will cause foreseeable harm ‘in the specific context of the agency action at issue.’”
  • Exemption 5, Attorney Work-Product & Exemption 5, Foreseeable Harm and Other Considerations:  The court relates that “[t]he FBI also argues that some documents qualify for Exemption 5 because the attorney work-product doctrine protects them.”  “The FBI relies on this doctrine to withhold a few documents.”  “They include (1) memoranda containing information from an Assistant United States Attorney (AUSA) about the timing of Epstein’s indictment and seizure of his assets; (2) a memorandum sent to an AUSA about the value of an asset Epstein owned for consideration of its seizure; and (3) memoranda describing actions the FBI is taking at the direction of an AUSA related to a potential forfeiture action for Epstein’s assets and the potential prosecution of Epstein and others.”  “The FBI explains that it created these memoranda ‘in reasonable anticipation of litigation’ and that they contain the ‘AUSA’s prosecutorial strategy and the information the AUSA was gathering to either support an indictment of Jeffrey Epstein or a civil forfeiture action or both.’”  “The Court agrees with the FBI that these documents fall squarely within the attorney work-product doctrine.”  “As for foreseeable harm, the FBI notes that releasing this type of information would impede prosecutors’ ability to properly prepare legal theories and would hinder their ability to effectively represent the United States in any future litigation related to Epstein’s co-conspirators.”  “The Court agrees that this is a reasonably foreseeable harm articulated with sufficient contextual specificity.”
  • Exemption 6 & Exemption 7(C):  The court first finds that “[t]he FBI . . . claims Exemptions 6 and 7(C).”  “Though the two exemptions are similar, 7(C) ‘provides broader privacy protections’ and ‘thus establishes a lower bar for withholding material.’”  “The Court thus considers only Exemption 7(C).”  The court relates that “[t]he FBI withheld the names and identifying information of several categories of people under Exemption 7(C).”  “They are:  (1) third parties of investigative interest; (2) FBI special agents and professional personnel, including victim specialists; (3) third-party victims; (4) local law enforcement personnel; (5) third parties mentioned as part of the FBI’s investigative efforts or who provided information; (6) non-FBI federal government personnel; and (7) state and local government personnel.”  “The FBI attests that it ‘scrutinized’ each piece of information it withheld ‘to determine the nature and strength of the privacy interest of each individual whose name or other identifying information appears in the records at issue.’”  “And the FBI explains that it balanced each individual’s privacy interest against the public’s interest in disclosure.”  “The FBI also asserts that foreseeable harm would result from disclosure of these individuals’ names or identifying information.”  “The FBI explains that the individuals whose identities are released could be ‘targeted for reprisal’ or may ‘become targets of inquiries for unauthorized access to investigative information.’”  “So too for victims, who could also suffer embarrassment if their names were released.”  “And the FBI fears that releasing certain names ‘could lead to harassment, intimidation by investigative subjects, legal or economic detriment, physical harm, or even death.’”  “The FBI has thoroughly described the risk of foreseeable harm in the specific context of the agency action at issue.”  “Nothing in the record suggests that the withheld information clarifies the FBI’s performance of its statutory duties.”  “And given the FBI’s uncontradicted, plausible declaration showing a logical relationship to the exemption and foreseeable harm, the Court find that the FBI has properly invoked Exemption 7(C).”
  • Exemption 7, Threshold:  The court relates that “[t]he FBI explains at length that it compiled the records ‘in furtherance of the FBI’s investigation of child prostitution and sex trafficking involving Jeffrey Epstein and other individuals of investigative interest.’”  “Because the records it withheld under Exemption 7 ‘were compiled to document the FBI’s investigation of potential federal crimes,’ . . . the Court agrees that they satisfy Exemption 7’s threshold requirement.”
  • Exemption 7(A):  The court relates that “[t]he FBI asserts this exemption to protect information related to an ongoing criminal investigation of Jeffrey Epstein and others for sex trafficking and child prostitution, and to protect any prospective prosecution of potential co-conspirators.”  “The FBI’s declarant describes the types of documents exempt from release, including emails, interview forms, interview notes, documents from state and local law enforcement agencies, documents implementing sensitive investigative techniques, grand jury subpoenas, evidence logs, and more.”  “And the FBI determined that releasing these documents ‘would provide criminals with information about the government’s investigation and enforcement strategies in ongoing matters, allow them to predict and potentially thwart these strategies, and allow them to identify and tamper with witnesses or otherwise destroy evidence.’”  “It also confirmed that release of the records would harm at least one active investigation and any prospective prosecutions of Epstein’s potential co-conspirators.”  “The FBI properly asserts Exemption 7(A) because it identifies the pertinent investigations and explains how release of the withheld information could imperil them.”
  • Exemption 7(D):  The court holds that “[t]he FBI properly asserted Exemption 7(D) as to this information.”  “First up are sources operating under express assurances of confidentiality.”  “The FBI asserts that it found evidence while processing the records that certain individuals ‘either requested that their identity not be revealed’ or that FBI investigators ‘would have, by standard practice, expressly promised them that their identity and the information provided (outside of its investigative use) would remain confidential.’”  “More, the FBI explains that the designation ‘CW’ (cooperating witness) or ‘CHS’ (confidential human source) on certain files indicates that these sources provided information under an express grant of confidentiality.”  “The FBI therefore offers probative evidence that these sources received express assurances of confidentiality.”  “As for foreseeable harm, the FBI explains that releasing this information would ‘display an unwillingness by the FBI to honor its assurance of confidentiality to current and future sources,’ causing ‘great detriment to the FBI’s ability to recruit and maintain reliable confidential sources.’” 

    “Next up are sources operating under implied confidentiality.”  “The FBI argues that for certain sources, the circumstances in which they provided information support an inference of confidentiality.”  “These circumstances include the unique position of the sources, their inside knowledge of investigative subjects, and the detailed information they provided about the trafficking and prostituting of children.”  “The Court agrees that these circumstances support a finding of implied confidentiality.”  “The FBI thus properly withheld the names and other identifying information of these sources and the information they provided.”  “As for foreseeable harm, the FBI explains that disclosing the information these sources provided could jeopardize the FBI’s ability to ask these sources for help going forward and could subject the sources to reprisal.”
  • Exemption 7(E):  The court holds that “[t]he FBI has properly asserted Exemption 7(E).”  “The FBI easily clears [the] low bar.”  “Its declarant explains that the FBI withheld collection methods, analysis of investigative information, sensitive file numbers, types and timing of investigations, information about targets, dates, and the scope of surveillance, and more.”  “The FBI adequately explained that it applied this exemption to non-public investigative techniques and procedures that it uses to enforce laws.”  “And the FBI articulates a context-specific foreseeable harm: releasing investigative techniques could help criminals evade the law, employ countermeasures, and avoid criminal activities in a particular area to evade detection.”  “More, [the] Court has recognized that the sensitive context in which Exemption 7(E) claims often arise suggest a finding of foreseeable harm.”
  • Procedural Requirements & Litigation Considerations:  The court relates that “[t]he FBI also withheld 38 pages in full because they are sealed by court order.”  “The FBI’s declarant attests that the FBI searched for an unsealing order within the case file on the Public Access to Court Electronic Records . . . system but found none.”  “The FBI also contacted the U.S. Attorney’s Office to ask about the seal.”  “That USAO informed the FBI that the court order was sealed under Federal Rule of Criminal Procedure 6(e).”  “Most importantly, the FBI asserts that it withheld records and information ‘pursuant to court order’ in its statement of undisputed material facts, . . . which the Court finds admitted because [plaintiff] failed to oppose them.”  “Given all of this, the Court finds that summary judgment is proper as to these records.”
  • Exemption 6; Exemption 7(C) & Exemption 7(D):  The court relates that “[t]he FBI properly issued a Glomar response.”  “The FBI issued two Glomar responses to [plaintiff].”  “One pertained to her request for documents about certain third parties and another to her request for confidential human source records.”  “The FBI refused to confirm or deny the existence of records pertaining to certain third parties because doing so would violate privacy interests that Exemptions 6 and 7(C) protect.”  “And the FBI refused to confirm or deny the existence of certain confidential human source records because doing so would harm interests related to its confidential source program that Exemption 7(D) protects.”  “[Plaintiff] has not challenged these Glomar responses, and the Court finds that they are proper.”
  • Litigation Considerations, “Reasonably Segregable” Requirements:  “The Court finds that the FBI properly satisfied its segregability burden.”  “The FBI’s declarant explains that the agency reviewed each record to identify information exempt from disclosure and determined that there is no meaningful, non-exempt information that can be reasonably segregated and released.”
Court Decision Topic(s)
District Court opinions
Exemption 1
Exemption 3
Exemption 5
Exemption 5, Attorney Work-Product Privilege
Exemption 5, Deliberative Process Privilege
Exemption 6
Exemption 7(A)
Exemption 7(C)
Exemption 7(D)
Exemption 7(E)
Exemption 7, Threshold
Litigation Considerations, Adequacy of Search
Litigation Considerations, Foreseeable Harm Showing
Litigation Considerations, Supplemental to Main Categories
Litigation Considerations, “Reasonably Segregable” Requirements
Procedural Requirements, Supplemental to Main Categories
Updated December 14, 2022